HOA Failed to Achieve Quorum at the Annual Meeting

WalterM3 (Georgia)
Posts: 442

Posted:

My HOA at the annual meeting this past March failed to achieve a quorum, which is 1/3 of the owners, present or represented by proxy. At the opening of the meeting there were 5 Board members. One of those had served the full three year term stated in the Bylaws. He declined to run again. The Bylaws state the affairs of the Association will run by a Board consisting of between 5 and 9 members. The Bylaws also state that the Board may act to fill vacancies. However this one position was not vacant. The term had expired. With no quorum of the Association members established, no new members could be elected leaving only four Board members. The meeting was adjourned with no vote being held.

To rectify this shortage of properly seated Board members, the Board sent out 'mail in' ballots to all the home owners. The ballot listed two candidates. This mail in vote also failed to achieve a quorum. The deadline was May 5th. The HOA attorney advised to go ahead and seat the two candidates who had sought positions.

What do you all think of this? Is the Association in a legal limbo since only 4 Board members were elected at meetings with quorums properly called to order?

RichardP13 (California)
Posts: 3,868

Posted:

While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

Ah, there's the rub. The Board can act to fill vacancies. That one term was expired. That is why they embarked on a mail in vote. To get validity to seat newly elected Board members. If the Board could just appoint new members to fill expired terms, then it would never have to achieve a quorum of the Association members.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

The mail in vote also failed to bring in enough ballots to represent a quorum of the home owners.

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By WalterM3 on 07/27/2017 11:12 AM

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

Ah, there's the rub. The Board can act to fill vacancies. That one term was expired. That is why they embarked on a mail in vote. To get validity to seat newly elected Board members. If the Board could just appoint new members to fill expired terms, then it would never have to achieve a quorum of the Association members.

The actual answer lies in your documents, but it sounds like you are exactly right. The election process allows the members a voice. Without quorum, the board probably can appoint new members to fill vacancies.

If the term ended and nobody ran against him, the board should be able to allow him to continue serving.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By DouglasM6 on 07/27/2017 11:24 AM

Posted By WalterM3 on 07/27/2017 11:12 AM

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

Ah, there's the rub. The Board can act to fill vacancies. That one term was expired. That is why they embarked on a mail in vote. To get validity to seat newly elected Board members. If the Board could just appoint new members to fill expired terms, then it would never have to achieve a quorum of the Association members.

The actual answer lies in your documents, but it sounds like you are exactly right. The election process allows the members a voice. Without quorum, the board probably can appoint new members to fill vacancies.

If the term ended and nobody ran against him, the board should be able to allow him to continue serving.

Wouldn't that process mean that the Board could continue indefinitely reappointing members who never have to be validated by the Association as a whole?

The Bylaws read:

"The affairs of the Association shall be governed by a Board of Directors consisting of not Less than five (5) and no more than nine (9) members."

It seems to me that the fifth member, besides not wanting to continue, can't serve without being validated by the home owners by being re-elected at a duly called meeting -- one where a quorum is convened. He served three years, his term was expired.

KerryL1 (California)
Posts: 14,550

Posted:

What do your Bylaws say about vaccines, Walter?? If you must have a minimum of five directors, you do, in fact, now have a vacancy. Most we see on this forum say the board may fill vacancies.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By KerryL1 on 07/27/2017 12:39 PM
What do your Bylaws say about vaccines, Walter?? If you must have a minimum of five directors, you do, in fact, now have a vacancy. Most we see on this forum say the board may fill vacancies.

There wasn't a vacancy. There was an expired term. The Board accepted this interpretation, that is why they did a subsequent mail in ballot trying to get 1/3 of the Association members to respond. That failed also.

Only four Board members have been elected at meetings properly called to order. That is not enough it seems to me to legally conduct the Association's affairs.

This section of the Bylaws would seem to govern:

"Vacancies. A vacancy of any office because of death, resignation, removal or disqualification, or otherwise may be filled in the manner prescribed for regular election. The officer elected to such vacancy shall serve for the remainder of the term of the office he replaces."

KerryL1 (California)
Posts: 14,550

Posted:

I understand you completely, Walter. In your citation this would seem to fit "otherwise." In addition, your citation seems to have to do with officers vs. directors. I feel that you haven't given us all of the relevant citations about this matter.

It's obvious you don't want the Board to appoint/select someone to fill the vacancy on your board. In that case, you need to drum up support so that an election can actually be held. I believe that's been difficult for you in the past tho' my memory may be flawed on this point.

RichardP13 (California)
Posts: 3,868

Posted:

While others may disagree with me, when you decline to seek re-election, you have resigned. Most Bylaws state that you serve until you have someone succeed you.

Unfortunately, reaching quorum, even a substantially reduced quorum fail to happen. therefore, Board don't change. Many, many Board members have been appointed rather than elected.

In reality, IT IS the Members responsibility to make sure quorum is achieved and elections are held, NOT the Board.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 1:27 PM
While others may disagree with me, when you decline to seek re-election, you have resigned. Most Bylaws state that you serve until you have someone succeed you.

Unfortunately, reaching quorum, even a substantially reduced quorum fail to happen. therefore, Board don't change. Many, many Board members have been appointed rather than elected.

In reality, IT IS the Members responsibility to make sure quorum is achieved and elections are held, NOT the Board.

A Board that is not properly constituted as required by law would seem unable to prevail in Court if the defense were presented that the Board members are not properly seated.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By WalterM3 on 07/27/2017 11:37 AM

Posted By DouglasM6 on 07/27/2017 11:24 AM

Posted By WalterM3 on 07/27/2017 11:12 AM

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

Ah, there's the rub. The Board can act to fill vacancies. That one term was expired. That is why they embarked on a mail in vote. To get validity to seat newly elected Board members. If the Board could just appoint new members to fill expired terms, then it would never have to achieve a quorum of the Association members.

The actual answer lies in your documents, but it sounds like you are exactly right. The election process allows the members a voice. Without quorum, the board probably can appoint new members to fill vacancies.

If the term ended and nobody ran against him, the board should be able to allow him to continue serving.

Wouldn't that process mean that the Board could continue indefinitely reappointing members who never have to be validated by the Association as a whole?

The Bylaws read:

"The affairs of the Association shall be governed by a Board of Directors consisting of not Less than five (5) and no more than nine (9) members."

It seems to me that the fifth member, besides not wanting to continue, can't serve without being validated by the home owners by being re-elected at a duly called meeting -- one where a quorum is convened. He served three years, his term was expired.

Wouldn't that process mean that the Board could continue indefinitely reappointing members who never have to be validated by the Association as a whole?

Yes that is what that means. No quorum, no voting, the existing BOD stays in place.

I say the BOD is short one person whose term expired and unless he is willing to remain on the BOD, the BOD has a vacancy and they can fill it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By WalterM3 on 07/27/2017 1:00 PM

Posted By KerryL1 on 07/27/2017 12:39 PM
What do your Bylaws say about vaccines, Walter?? If you must have a minimum of five directors, you do, in fact, now have a vacancy. Most we see on this forum say the board may fill vacancies.

There wasn't a vacancy. There was an expired term. The Board accepted this interpretation, that is why they did a subsequent mail in ballot trying to get 1/3 of the Association members to respond. That failed also.

Only four Board members have been elected at meetings properly called to order. That is not enough it seems to me to legally conduct the Association's affairs.

This section of the Bylaws would seem to govern:

"Vacancies. A vacancy of any office because of death, resignation, removal or disqualification, or otherwise may be filled in the manner prescribed for regular election. The officer elected to such vacancy shall serve for the remainder of the term of the office he replaces."

Only four Board members have been elected at meetings properly called to order. That is not enough it seems to me to legally conduct the Association's affairs.

4 of 5 BOD members is a quorum, 3 of 5 is a quorum and they can conduct business.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Walter

Does memory serve me correctly that you have been trying to get on (or is it back on) the BOD so nothing they do will be right in your eyes until you are on the BOD.

Stop with the "me thinks" and learn to read the docs.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnC46 on 07/27/2017 1:37 PM

Posted By WalterM3 on 07/27/2017 1:00 PM

Posted By KerryL1 on 07/27/2017 12:39 PM
What do your Bylaws say about vaccines, Walter?? If you must have a minimum of five directors, you do, in fact, now have a vacancy. Most we see on this forum say the board may fill vacancies.

There wasn't a vacancy. There was an expired term. The Board accepted this interpretation, that is why they did a subsequent mail in ballot trying to get 1/3 of the Association members to respond. That failed also.

Only four Board members have been elected at meetings properly called to order. That is not enough it seems to me to legally conduct the Association's affairs.

This section of the Bylaws would seem to govern:

"Vacancies. A vacancy of any office because of death, resignation, removal or disqualification, or otherwise may be filled in the manner prescribed for regular election. The officer elected to such vacancy shall serve for the remainder of the term of the office he replaces."

Only four Board members have been elected at meetings properly called to order. That is not enough it seems to me to legally conduct the Association's affairs.

4 of 5 BOD members is a quorum, 3 of 5 is a quorum and they can conduct business.

The Board cannot act at all under the laws without at least 5 properly seated members. Only four members currently seated were elected by the Association members. That is what I see.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Walter

We see and understand what you think so repeating it is not necessary.

The problem is the majority responding to you do not agree with you.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnC46 on 07/27/2017 1:42 PM
Walter

We see and understand what you think so repeating it is not necessary.

The problem is the majority responding to you do not agree with you.

As I said earlier, failing to achieve a quorum at the annual meeting in March, the Board did a 'mail in' vote with two names with a deadline in May. The mail in vote also failed to garner enough votes to gain a quorum.

I would suggest that the reason the Board mailed out ballots is because they knew they couldn't appoint someone to an expired term, even the incumbent.

Nothing I have seen posted addresses that issue.

RichardP13 (California)
Posts: 3,868

Posted:

Walter

I believe you fail to understand that it is not the Board job to get people to vote. They mailed out ballots. They held an Annual Meeting. You and the Members have no one to blame but yourselves.

"You can lead a horse to water, but you can make them drink"!

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By WalterM3 on 07/27/2017 1:50 PM

Posted By JohnC46 on 07/27/2017 1:42 PM
Walter

We see and understand what you think so repeating it is not necessary.

The problem is the majority responding to you do not agree with you.

As I said earlier, failing to achieve a quorum at the annual meeting in March, the Board did a 'mail in' vote with two names with a deadline in May. The mail in vote also failed to garner enough votes to gain a quorum.

I would suggest that the reason the Board mailed out ballots is because they knew they couldn't appoint someone to an expired term, even the incumbent.

Nothing I have seen posted addresses that issue.

The Board didn't fail to make quorum, the Members did.

KerryL1 (California)
Posts: 14,550

Posted:

Without going back to similar exchanges with Walter, I think you're right, JohnC and he will keep repeating himself. I think he even has jumped on this exact sam issue, if memory serves me.

And he will not cite the complete texts of his bylaws on THIS topic.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I think if the homeowners do not like what they are dished out ... then they need to step up and start participating in their HOA. BOD members are in place until they either are replaced or resign. You had 5 before your meeting and one resigned which left 4. You have "apathy" with homeowners choosing to NOT participate (so sad). So the other 4 BOD members continue as they were not replaced.

They simply could have "appointed" another individual after the annual meeting to insure the minimum requirement of 5 continued. However, they were nice and had two people step up to the plate and sent out ballots (which really did not need to do as could appoint both as your documents allow a maximum of 9), and cost how much to print and mail? And still homeowners did not respond via mail (again ... SAD). I agree with the HOA attorney to add both as you are allowed a maximum of 9 ... however, I would have recommended this BEFORE the expense of mailing ballots which owners did not properly respond. YEP ... would have saved the HOA some money ... LOL.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JanetB2 on 07/27/2017 7:34 PM
I think if the homeowners do not like what they are dished out ... then they need to step up and start participating in their HOA. BOD members are in place until they either are replaced or resign. You had 5 before your meeting and one resigned which left 4. You have "apathy" with homeowners choosing to NOT participate (so sad). So the other 4 BOD members continue as they were not replaced.

They simply could have "appointed" another individual after the annual meeting to insure the minimum requirement of 5 continued. However, they were nice and had two people step up to the plate and sent out ballots (which really did not need to do as could appoint both as your documents allow a maximum of 9), and cost how much to print and mail? And still homeowners did not respond via mail (again ... SAD). I agree with the HOA attorney to add both as you are allowed a maximum of 9 ... however, I would have recommended this BEFORE the expense of mailing ballots which owners did not properly respond. YEP ... would have saved the HOA some money ... LOL.

The HOA attorney was WRONG. The BOD in this case would appoint. If you add the two, you now have 6, and even number. No the right thing to do.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 7:43 PM

Posted By JanetB2 on 07/27/2017 7:34 PM
I think if the homeowners do not like what they are dished out ... then they need to step up and start participating in their HOA. BOD members are in place until they either are replaced or resign. You had 5 before your meeting and one resigned which left 4. You have "apathy" with homeowners choosing to NOT participate (so sad). So the other 4 BOD members continue as they were not replaced.

They simply could have "appointed" another individual after the annual meeting to insure the minimum requirement of 5 continued. However, they were nice and had two people step up to the plate and sent out ballots (which really did not need to do as could appoint both as your documents allow a maximum of 9), and cost how much to print and mail? And still homeowners did not respond via mail (again ... SAD). I agree with the HOA attorney to add both as you are allowed a maximum of 9 ... however, I would have recommended this BEFORE the expense of mailing ballots which owners did not properly respond. YEP ... would have saved the HOA some money ... LOL.

The HOA attorney was WRONG. The BOD in this case would appoint. If you add the two, you now have 6, and even number. No the right thing to do.

Sigh ... I think that is pretty much what I stated. I do agree that having an EVEN number is not best and potentially the BOD should "appoint" one more so they have a tie breaking odd number of Directors vote. Maybe the OP should point this out and volunteer to join the Board

.

JanetB2 (Colorado)
Posts: 4,219

Posted:

BTW Richard ... IMO ... the HOA Attorney was RIGHT not Wrong!!!

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JanetB2 on 07/27/2017 7:55 PM
BTW Richard ... IMO ... the HOA Attorney was RIGHT not Wrong!!!

No, the attorney was WRONG. First, under no circumstance, would an attorney advise to seat an even number of directors. Second, how many vacancies was the election for, one? If the election was for one seat and had two candidate, then you would advise the Board to appoint one candidate. BUT, the Board makes that decision, not the attorney.

Besides, i don't see where anyone was appointed.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 8:53 PM

Posted By JanetB2 on 07/27/2017 7:55 PM
BTW Richard ... IMO ... the HOA Attorney was RIGHT not Wrong!!!

No, the attorney was WRONG. First, under no circumstance, would an attorney advise to seat an even number of directors. Second, how many vacancies was the election for, one? If the election was for one seat and had two candidate, then you would advise the Board to appoint one candidate. BUT, the Board makes that decision, not the attorney.

Besides, i don't see where anyone was appointed.

LOL ... so your attitude is to disregard advise from an HOA Attorney??? SERIOUSLY??? If the HOA could have up to a MAXIMUM of 9 Directors and two stepped up to the plate ... you would TURN DOWN their VOLUNTARY contribution? Potentially an Attorney WOULD advise an odd number of directors. However, to avoid Legal Litigation why not appoint those who volunteered and then in near future add another to make it an ODD number of directors (which would only be SEVEN when can have NINE). YEP ... I agree the Board makes that decision; however, if based on advice from their attorney it greatly would reduce their HOA liability. What do you mean don't see where anyone was appointed??? The OP stated that the attorney recommended that the two individuals who ran (even though homeowners via apathy did not submit votes) be appointed to the BOD.

JanetB2 (Colorado)
Posts: 4,219

Posted:

BTW ... I know a number of HOA's who have had in past an EVEN number of Directors until such time as later changed.

RichardP13 (California)
Posts: 3,868

Posted:

I listen to advise from an attorney, doesn't mean I go further with it. I have worked for an HOA attorney, and I know first hand how uneducated some are in regards to HOA's.

WalterM3 (Georgia)
Posts: 442

Posted:

Quote:

Posted By JohnC46 on 07/27/2017 1:34 PM

Posted By WalterM3 on 07/27/2017 11:37 AM

Posted By DouglasM6 on 07/27/2017 11:24 AM

Posted By WalterM3 on 07/27/2017 11:12 AM

Posted By RichardP13 on 07/27/2017 10:59 AM
While I am not an attorney, I find it hard to believe that the individual giving you that advice is one either.

You stated that one Board member declined to run, thus you have one vacancy, not two. The Board should appoint a replacement, possibly, but not necessarily, from the two candidates on the second mail-in ballot.

Ah, there's the rub. The Board can act to fill vacancies. That one term was expired. That is why they embarked on a mail in vote. To get validity to seat newly elected Board members. If the Board could just appoint new members to fill expired terms, then it would never have to achieve a quorum of the Association members.

The actual answer lies in your documents, but it sounds like you are exactly right. The election process allows the members a voice. Without quorum, the board probably can appoint new members to fill vacancies.

If the term ended and nobody ran against him, the board should be able to allow him to continue serving.

Wouldn't that process mean that the Board could continue indefinitely reappointing members who never have to be validated by the Association as a whole?

The Bylaws read:

"The affairs of the Association shall be governed by a Board of Directors consisting of not Less than five (5) and no more than nine (9) members."

It seems to me that the fifth member, besides not wanting to continue, can't serve without being validated by the home owners by being re-elected at a duly called meeting -- one where a quorum is convened. He served three years, his term was expired.

Wouldn't that process mean that the Board could continue indefinitely reappointing members who never have to be validated by the Association as a whole?

Yes that is what that means. No quorum, no voting, the existing BOD stays in place.

I say the BOD is short one person whose term expired and unless he is willing to remain on the BOD, the BOD has a vacancy and they can fill it.

Our bylaws as I said earlier speak explicitly to vacancies. The Board may act to replace departed Board members who complete the term of the departed members.

Once the term is expired the Board cannot fill it. That is what I see. That is why they tried a mail in vote and that didn't work either.

Our Bylaws give the president a tie breaker vote - a second vote in case of a tie. So an even number of Board members is not problem.

Someone said it is on the people if the Association fails of a quorum. There is this little thing called leadership. Failing to achieve a quorum is a leadership failure. It is, or could be the people:

1. Are rejecting the Board's agenda and leadership.

2. Are revoking in a sense, the sovereignty of the Association. Telling the Board we don't want you acting in our name.

I think also the attorney made the right call - move forward with managing the affairs of the Association. But I also think that the HOA - the Association - cannot prevail in court until they have seated at least 5 members who are elected in accordance with the Bylaws.

Like most HOA's I would guess, our HOA is a non-profit corporation. The officers - president, VP, treasurer, and secretary - are governed by the laws of this state that govern non-profit corporations. Those individuals need to be really careful how they act. Because there is no properly seated 5th member as required by law.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Sigh ... Walter per your State Statutes regarding your Non-Profit HOA:

2010 Georgia Code
TITLE 14 - CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3 - NONPROFIT CORPORATIONS
ARTICLE 8 - DIRECTORS AND OFFICERS
PART 1 - BOARD OF DIRECTORS
§ 14-3-805 - Terms of directors

(d) Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors.

Keep in mind your CCR's and Bylaws cannot VIOLATE your State Laws. Do you really think your State Legislators have not considered the fact that Directors might resign or potential "apathy" within any organization in their law making decisions? Most all States allow a Director to continue to serve until a successor is elected.

I would also be willing to BET a lot of money that your documents and State law allow the BOD to appoint more directors. Per your own comments a Maximum of 9 are allowed. YEP ... if the membership has not elected all nine the BOD can fill any empty positions up to that maximum. Then at next Annual Meeting the Members can make a change if desired.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 07/27/2017 10:45 PM
I listen to advise from an attorney, doesn't mean I go further with it. I have worked for an HOA attorney, and I know first hand how uneducated some are in regards to HOA's.

Yep so have I worked for attorneys and also understand how some are uneducated with regards to HOA's. Also the reason I can research and interpret state statues well. While I am not an attorney I fully comprehend the OP's HOA attorney views and would agree with the attorney statement. If the OP wants to disregard his HOA attorney he can exercise is Freedom of Choice to do so at his own peril. However, unlike you I would advise against it.

WalterM3 (Georgia)
Posts: 442

Posted:

"2010 Georgia Code
TITLE 14 - CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3 - NONPROFIT CORPORATIONS
ARTICLE 8 - DIRECTORS AND OFFICERS
PART 1 - BOARD OF DIRECTORS
§ 14-3-805 - Terms of directors

(d) Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors."

Thanks for this Janet.

As I have said 2 or 3 times already, at the annual meeting in March the one person declined to continue, leaving only four Board members. The president announced that no quorum was achieved so no election was held. Then they sent out a mail in ballot to all home owners with two names on it with a due date of May 5. They didn't get 1/3 of the home owners to return the mail in ballot, so that failed too.

The Bylaws state:

"Term of Office. Each director shall be elected to serve a term of three (3) years. The terms of the directors shall be staggered such that the terms of no more than three (3) directors shall expire in any given year. Directors shall hold office for the term for which he or she was elected and until his or her successors are elected and qualified or until his or her early resignation, death, or removal. No director shall serve more than two (2) consecutive three (3) year terms."

Since the attorney said to go ahead and seat the two candidates put forward on the mail in ballot, where does that leave the Association? I think in a big mess.

Based on the statute and the Bylaws, it would seem to me that the 5th director who declined to continue is still a Board member unless he turned in a written resignation. I say that because the two subsequent candidates were not properly "Qualified" as they were not properly seated by a vote of the Association, no quorum being had. Only the members of the Association can create new Directors. I doubt that was the departing board member did a written resignation.

From the Bylaws:

Nomination and Election of Directors. Election to the Board of Directors shall be by secret written ballot cast at the annual meeting, unless dispensed with by unanimous consent of those present at such meeting. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. Directors shall be elected by a plurality of the votes cast. Cumulative voting shall not be permitted."

I do very much appreciate your "nuts and bolts" input to the thread.

GeorgeR8 (Arizona)
Posts: 182

Posted:

Quote:

Posted By WalterM3 on 07/28/2017 4:43 AM
"2010 Georgia Code
TITLE 14 - CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3 - NONPROFIT CORPORATIONS
ARTICLE 8 - DIRECTORS AND OFFICERS
PART 1 - BOARD OF DIRECTORS
§ 14-3-805 - Terms of directors

(d) Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors."

After reading this why do you continue to post things from your By Laws?

RichardP13 (California)
Posts: 3,868

Posted:

So Walter, who is at fault here?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By WalterM3 on 07/28/2017 4:43 AM

"Term of Office. Each director shall be elected to serve a term of three (3) years. The terms of the directors shall be staggered such that the terms of no more than three (3) directors shall expire in any given year. Directors shall hold office for the term for which he or she was elected and until his or her successors are elected and qualified or until his or her early resignation, death, or removal. No director shall serve more than two (2) consecutive three (3) year terms."

Since the attorney said to go ahead and seat the two candidates put forward on the mail in ballot, where does that leave the Association? I think in a big mess. Not a mess because you can have up to Nine (9) Directors. If two ran for office and owners were dumb enough to not properly participate in a vote why not just allow the two who stepped up to the plate serve??? As long as you have less than 9 ... who cares if appointed and what is the big deal?

Based on the statute and the Bylaws, it would seem to me that the 5th director who declined to continue is still a Board member unless he turned in a written resignation. I say that because the two subsequent candidates were not properly "Qualified" as they were not properly seated by a vote of the Association, no quorum being had. Only the members of the Association can create new Directors. I doubt that was the departing board member did a written resignation. He gave a verbal resignation at the meeting when vote was to happen. Again, it would be noted in the meeting minutes along with fact no quorum was met for holding the election. Again, what does it matter if resignation was verbal or written ... the resignation has been given and that individual has no intention of furthering their service ... period end.

From the Bylaws:

Nomination and Election of Directors. Election to the Board of Directors shall be by secret written ballot cast at the annual meeting, unless dispensed with by unanimous consent of those present at such meeting. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. Directors shall be elected by a plurality of the votes cast. Cumulative voting shall not be permitted."

I do very much appreciate your "nuts and bolts" input to the thread.

Keep in mind an Association is ran by a bunch of volunteers. They are simply owners trying to do the best they can under certain circumstances which vary by HOA. They are not attorney's and when homeowners are always giving them a bunch of bull ... you then end up with an HOA who does not have people wanting to step up to the plate and volunteer for the Board. Unless you just absolutely hate your Board I am not sure what your issue is??? Potentially they should have an odd number and which is why I suggested you point out this fact and have yourself appointed. This is the best way to oversee the operation of your HOA. Having 7 Board Members vs. 5 is not a big deal for a year until your next annual election. You guys can then go back to 5 Directors if desired, or maybe you will find you prefer having 7.

The point is sometimes you make due with what you are dished out for a short time because it is in the best interest of the HOA. The alternative could be a bunch of people jumping on band wagons and filing frivolous lawsuits which would cost all of you many tens of thousands of dollars ... and for what?